Graham v. Mentor Worldwide LLC et al
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Case is hereby DISMISSED WITH PREJUDICE, a judgement will accompany this Order.. Signed by District Judge Jean C. Hamilton on 10/08/2019. (AAS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Cause No. 4:19-CV-01637 JCH
MENTOR WORLD WIDE LLC
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Dismiss. (ECF No. 32). The
Motion is fully briefed and ready for disposition.
On April 5, 2019, Plaintiff filed a Petition in the Circuit Court of St. Louis County,
Missouri. Plaintiff filed an Amended Petition on April 22, 2019. In her Amended Petition,
Plaintiff asserted a strict liability claim against Defendant Mentor World Wide LLC as
manufacturer of her breast implants; a strict product liability claim against Defendant St. Louis
Cosmetic Surgery, Inc., the clinic where the implants were placed; and a negligence claim
against Defendant Haley, the driver of a vehicle which rear-ended the Plaintiff.
On June 5, 2019, Defendants Removed the case from state court. (ECF No. 1). On June 6,
2019, Defendant St. Louis Cosmetic Surgery, Inc filed a Motion to Dismiss Count II of
Plaintiff’s Complaint. (ECF No. 10). On June 11, 2019, the Plaintiff brought a Motion to
Remand. (ECF No. 12). On June 12, Defendant Mentor World Wide LLC also filed a Motion to
Dismiss the case in its entirety. (ECF No. 17). The Court took up all the motions together and on
July 19, 2019, the Court held that Count III of Plaintiff’s Complaint for negligence against
Defendant Haley ought to be severed and remanded to state court. (ECF Nos. 28, 29).
Additionally, Plaintiff’s claim under Count II for Strict Products Liability against Defendant St.
Louis Cosmetic Surgery, Inc. was dismissed as not being cognizable under Missouri Law. (ECF
No. 28). Count I for Products Liability remains against Defendant Mentor World Wide LLC.
On its Motion to Dismiss, Defendant raised a preemption issue that the Court determined would
be more appropriate for summary judgement.
On August 2, 2019, Defendant Mentor World Wide LLC filed an answer in this case.
(ECF No. 30). On September 20, 2019 Plaintiff filed a Motion to Dismiss Without Prejudice.
(ECF No. 32). The Defendant opposes this motion. Defendant argues that Plaintiff has not
satisfied the standards for voluntary dismissal in accordance with Fed. R. Civ. P. 41(a)(2) and
therefore should not be permitted to dismiss without prejudice, or in the alternative should pay
attorney fees if the Court dismisses Plaintiff’s case. (ECF No. 35).
Federal Rule of Civil Procedure 41 allows the Plaintiff to dismiss after the Defendant has
filed an answer only by a stipulation of dismissal signed by all parties who have appeared. Fed.
R. Civ. P. 41(a)(1)(A)(ii). “Except as provided in Rule 41(a)(1), an action may be dismissed at
the plaintiff’s request by court order, on terms that the court considers proper.” Fed. R. Civ. P.
41(a)(2). Rule 41(a)(2) is intended “to prevent voluntary dismissals which unfairly affect the
other side.” Paulucci v. City of Duluth, 826 F.2d 780,782 (8th Cir. 1987). In ruling on the
Plaintiff’s motion, the Court should consider whether the Plaintiff has presented a proper
explanation for its desires to dismiss, whether a dismissal will result in waste of judicial time and
effort, and whether a dismissal will prejudice the defendant. Mulen v. Heinkel Filtering Sys.,
Inc., 770 F.3d 724, 728 (8th Cir. 2014).
Plaintiff in her Motion to Dismiss has failed to give a reason for wanting to dismiss this
case without prejudice. Defendant raises concerns about Plaintiff’s intent to refile in state court
or to escape an adverse decision. (ECF No. 35, 3–4). Dismissal for the purpose of finding a more
favorable forum or to escape an undesirable outcome is inappropriate. See, Hamm v. RhonePoulenc Rorer Farms., Inc. 187 F.3d 941, 950 (8th Cir. 1999)(holding that a party is not
permitted to dismiss to escape an adverse decision); see also, Donner v. Alcoa, Inc., 709 F.3d
694, 697 (8th Cir. 2013)(“a party may not dismiss merely to escape an adverse decision or to
seek a more favorable forum.”); and see, Blaes v. Johnson & Johnson, 858 F.3d 508, 513 (8th
Cir. 2017)(“A Plaintiff cannot use a motion to voluntarily dismiss to seek a more favorable
forum.”). Plaintiff further fails to reply to Defendant’s allegations. See, Walton v. Wal-Mart
Stores, Inc., No. 4:09CV4 HEA, 2010 WL 1706047, at *1 (E.D. Mo. Apr. 28, 2010)(noting that
“[i]n the absence of any explanation as to the need for taking a dismissal, it appears likely that
Plaintiff seeks to dismiss the case in order to avoid an adverse decision or to seek a more
favorable forum.”). Upon weighing the relevant factors in this case – Plaintiff’s lack of proffered
reasons for dismissal at this juncture, and Defendant’s concerns regarding prejudice – the Court
will dismiss Plaintiffs case with prejudice.
IT IS HEREBY ORDERED that Plaintiff’s Case is hereby DISMISSED WITH
PREJUDICE, a judgement will accompany this Order.
Dated this 8th day of October, 2019.
/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT COURT
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